by Greg Beck and Paul Alan Levy
The en banc Ninth Circuit yesterday decided an issue of great importance to consumers on the Internet. The issue: In what circumstances can web site operators that pose discriminatory questions that violate anti-discrimination laws be immune from liability when those who sell or rent housing express discriminatory preferences in response? Cutting back on his own more expansive opinion for a three-judge panel, and largely following the useful amicus brief submitted by the ACLU in support of neither party, Judge Kozinski's opinion walks a careful line and reaches a decision that protects consumers from unlawful discrimination while at the same preserving the broad protections granted web sites that host consumer criticisms against suits – and threats of suit – that seek to shut them down.
The problem in the case arose under section 230 of the Communications Decency Act. Section 230(c)(1) states: "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." Courts throughout the country have granted broad protection to web sites that host discussions, even if those discussions contain allegedly defamatory comments, recognizing that the web site operator is not a "publisher" of the information under the CDA. This immunity is of critical importance to web sites that allow users to post reviews and opinions about companies and products. The CDA represents Congress's understanding that web sites would not long survive if forced to review every statement posted by their users for potentially defamatory content. If a disgruntled former customer has submitted libelous comments, suit must be brought against the commenter, not against the web host.
However, this immunity also cast the impact of consumer protection statutes into doubt. For example, a bank would violate federal law by asking a borrower's race on a loan application. Could a web site that matched borrowers to lenders avoid liability if it asked the same question and then provided that information to interested banks so that they could discriminate?
That, essentially, was the problem posed in the roommates.com decision. The roommates.com web site provides a service for matching renters with those with spare rooms to rent. Users of the service are required to fill out a profile that use drop down menus demanding information about the user’s sex, sexual orientation, and children, as well as the user's preferences as to these factors, all of which are allegedly prohibited considerations under either federal or California law. The answers to those questions then appear in the users’ online profiles, and are used to screen users to decide which users will get information about which housing opportunities.
Roommates.com argued that the CDA provided it immunity to liability for discrimination. The Ninth Circuit, however, disagreed. The court analogized the matching service to real-world real-estate transactions, holding that the web site's discriminatory questions were "no different from a real estate broker in real life saying, 'Tell me whether you’re Jewish or you can find yourself another broker.'" As Judge Kozinski wrote, if questions are unlawful when posed face-to-face, they “don't magically become lawful when asked electronically online. The [CDA] was not meant to create a lawless no man's-land on the Internet.” Opinion at 3456.
At the same time, the en banc majority opinion was careful to explain that earlier opinions protecting the hosts of interactive web sites against suit for defamatory responses to their questions, such as Batzel v. Smith and Carafano v. Metrosplash.com are still good law. For example, even though the plaintiffs argued that by posing discriminatory questions the web host was implicitly encouraging users to post discriminatory preferences in the open “Additional comments” section of their responses, no suit could be brought against roommates.com based on such comments. Opinion at 3471 et seq. Moreover, although Judge Kozinski’s majority opinion on the three-judge panel that initially decided the case discussed hypothetical web sites that invited harmful opinions, and hence might be held liable for defamation (see pages 5720-5721 of that slip opinion), these hypotheticals do not appear in his en banc majority opinion which, indeed, goes out of its way to insist that hypotheticals posed by the dissenting opinion would be protected by section 230 immunity under the en banc holding. Indeed, at page 3474 of the en banc majority opinion, Judge Kozinksi specifies both that “close cases where a clever lawyer could argue that something the web site operator did encouraged the illegality. . . . must be resolved in favor of immunity,” and that “section 230 must be interpreted to protect web sites not merely from ultimate liability, but from having to fight costly and protracted legal battles.”
We have no doubt that, as Eric Goldman suggests, the “clever lawyers” about whom Judge Kozinski warned will be searching this opinion for dicta that may allow them to draft conclusory complaints on behalf of companies and political figures who are criticized online, to try to bludgeon interactive web sites into removing critical comments posted by users or face costly litigation. Courts will have to be alert to this problem. A conclusory allegation that the web host “encourages” defamatory postings, for example, should not be sufficient to embroil the host of a consumer complaint or discussion site in the expense of litigation about whether one or more messages is false or defamatory. Part of the solution may be found in Judge Kozinski’s analogy from section 230 immunity to the principle of qualified immunity for public officials. In such suits, the court is required to decide the issue of immunity before allowing discovery on broader issues, and the denial of an immunity from suit is subject to an immediate, interlocutory appeal. We argued as amicus curiae in Batzel v Smith that the CDA provides immunity from suit and hence a denial of immunity is immediately appealable; the Ninth Circuit reached only our alternative argument that denial of an anti-SLAPP motion is immediately appealable.